Genuine Loss?
An Analysis of Ius Nexi and Residency-Based Citizenship Allocation in the
Context of Denationalization
Hannah Bliersbach
S1745522 13 August 2019 Wordcount: 9907
Supervisor: Dr. Matthew Longo
Second Reader: Dr. Carina van de Wetering
“Man, it turns out, can lose all so-called Rights of Man without losing his essential quality as a man, his human dignity. Only the loss of a polity
itself expels him from humanity”
Abstract
Modern states are faced with the challenge of an increasing mismatch between their territorial borders and the boundaries of their political community. Researchers set on finding a solution to combat said mismatch have produced a number of modernized principles of citizenship allocation. These principles attempt to walk a difficult line between adjusting to the growing mobility of people as such while upholding the state responsibility to protect their citizens’ rights. One rarely considered aspect is the extent of the denationalization powers bestowed upon the state through certain principles of citizenship distribution. This thesis examines Ayelet Shachar’s ius nexi principle and Joseph H. Carens’ residency-based approach to citizenship allocation. The analysis demonstrates that the justification for granting citizenship has a significant impact on the extent to which a state is capable of revoking an individual’s citizenship. The further examination of denationalization practices in the United States illustrates that a formal ban of denationalization does not prevent the erosion of the status of citizenship through extensive rights revocations upholding solely the formal membership designation of citizenship. The mismatch between territorial and community boundaries is not eliminated through the mere allocation of citizenship but requires both a formal and social affirmation of membership.
1. Introduction
“Why don’t they go back and help fix the totally broken and crime infested places from which they came. Then come back and show us how it is done” (Trump 2019).
Donald J. Trump – President of the United States (US) – send a clear message to four US Congresswomen of color on July 14, 2019 via his private Twitter account. His calls for them to leave the country they are currently serving were focused specifically on one of the Congresswomen: Ilhan Omar of Minnesota, who was born in Somalia and spent four years in Kenya’s Utago refugee camp before settling in the US, becoming a citizen and running for public office (Burke 2018). At a rally only days after his tweets, Trump stood silently among his supporters chanting “Send her back!” referring to Representative Omar. Disregarding the racism bleeding from the chant, these events were an indicator of a reality facing citizens holding more than one nationality: Omar had become a citizen. She had jumped through all the hoops necessary to naturalize and yet, the country she was supposed to “fix” first was Somalia. Her membership of US society was deemed less genuine. The President of the state she had sworn to serve, had attempted to strip her of exactly that right to active citizenship. The chanting crowd wished to expel her from the community – not simply anywhere, but “back” to Somalia. Her dual citizenship was not recognized, but rather seen as a deficiency.
Political theorists examining citizenship theory have mostly focused on the acquisition side of citizenship (Benhabib 2004; Gibney 2017). Once an individual has acquired legal membership, the story has come to its happy ending. The credits roll and the citizen holds her rights happily ever after. However, as demonstrated by Representative Omar’s recent treatment, citizenship acquisition is not the end of all problems: Citizenship status is not irreversible in most liberal democracies (Lavi 2011). The fact that citizenship revocation is a “rare phenomenon” among liberal states (Gibney 2017: 360) can arguably account for a lack of
interest in the topic. Nonetheless, a number of European states – namely Austria, Belgium, Denmark, France, the Netherlands, the United Kingdom and most recently Germany – have taken steps toward the facilitation of the denationalization of citizens, particularly those convicted or suspected of being involved in terrorist acts or organizations (Gibney 2013a; Weil 2017; Mantu 2018; Deutscher Bundestag 2019). Citizenship revocation thus demands greater scholarly attention but cannot be studied as removed from the discussions surrounding citizenship acquisition. The act a person is denationalized for is only one part of the puzzle. The justification of citizenship revocation offers a unique view on who is deemed to be a worthy citizen. As political theorist Michael Walzer illustrates: “Admission and exclusion are the core of communal independence. They suggest the deepest meaning of self-determination” (Walzer 1983: 61-2).
This thesis seeks to bring both of these factors together. How do states allocate citizenship appropriately in the twenty-first century and how does the justification of citizenship rights affect the extent to which a state is capable of revoking citizenship? The institution of citizenship benefits from the inherent security of the status, which should not be risked through the extensive use of denationalization practices. Citizenship revocation is by far not the only measure capable of stripping citizens of their rights. However, the formal expulsion from a political community presents a different level of gravity as it implicates not only the polity in question, but also the international community. The institution of citizenship does need to adjust to the modern world, but the necessary changes should not result in the possible extension of denationalization procedures.
This paper commences with a brief exploration of denationalization both in terms of terminology and the history of the concept itself, specifically in the context of citizenship theory focused particularly on the perspective of Western liberal democratic states. The following section contrasts two contemporary principles of citizenship allocation coined by Ayelet
Shachar and Joseph H. Carens respectively. The allocation principles are evaluated by the grounds on which they grant a person citizenship, but also by the implications of these justifications on possible denationalization practices. I argue that even though Shachar’s proposed genuine-link principle addresses a crucial dilemma of modern citizenship, its implementation could place citizens and non-citizens under increased state scrutiny and opens the door to wider denationalization practices. Carens’ residency-based approach is better equipped to limit grounds for revocation of citizenship, but its simplistic setup has to be specified in order to prevent a dilution of the status of legal membership. A concluding look at the US context of citizenship revocation illustrates that the mere ban of citizenship revocation does not eliminate other ways citizenship can be infringed upon.
2. Literature Review – To Be or Not to Be a Citizen
Denationalization practices have existed as long as citizenship. Banishment was one of the earliest measures of expulsion from a polity. It transformed a member of the community into an outcast, who was forbidden to return either for a particular period of time or forever (Gibney 2019: 3). Before we dive deeper into the subject of denationalization and its connection to citizenship distribution, a brief elaboration on terminology is in order. The term ‘denationalization’ describes the “non-consensual withdrawal of nationality from an individual by her own state” (Gibney 2019: 2). Hence denationalization as a process is not synonymous with the renunciation of citizenship since the latter occurs voluntarily (Herzog 2015: 24). A plethora of other terms have been used to describe procedures (somewhat) similar to denationalization. Bauböck and Paskalev (2015) offer an in-depth discussion of all relevant terminology, which I will attempt to summarize subsequently.
2.1 Terminology
Denationalization removes the individual quite literally from the nation underlining the fact that the loss of citizenship is not only the loss of a legal political status, but also the expulsion from a social community. Bauböck and Paskalev utilize the term ‘deprivation of citizenship’ as synonymous to denationalization as it clearly points to an involuntary loss of membership (2015: 53). This denomination is similarly used in Article 15 of the Universal Declaration of Human Rights as an umbrella term capturing all “provisions of involuntary loss of citizenship or nationality” (Bauböck/Paskalev 2015: 53). The 1961 Convention on the Prevention of Statelessness, however, uses ‘loss’ as the umbrella term and ‘deprivation’ only when referring to withdrawal procedures. These differentiations matter, because an individual can lose her citizenship involuntarily in more than one way. Firstly, citizenship can be revoked through a formal withdrawal procedure. Secondly, it can lapse, which describes a scenario in which the individual loses her nationality ex lege (Vink/Bauböck 2013: 633). A lapse of citizenship does not require an active withdrawal through the state. German citizenship, for example, automatically lapses when a German national voluntarily naturalizes in another state without seeking permission from the German authorities first (Hofhansel 2018: 2). The lapsing of citizenship is especially problematic for the individual in question, because it cannot be challenged legally as it is not based on discretionary action taken by state authorities (Hofhansel 2018: 3).
Another popular term – particularly in the US context – is ‘expatriation’. It “usually means a voluntary act of leaving one country for another” but it can also refer to the voluntary termination of one’s citizenship (Herzog 2015: 13). However, US law also utilizes ‘expatriation’ to describe the denationalization of birthright citizens (Macklin 2015: 1). Therefore, this thesis will not make use of the term as its meanings are too ambiguous. I will use ‘denationalization’, ‘deprivation of citizenship’ as well as ‘revocation of citizenship’ interchangeably to describe the involuntary loss of nationality. ‘Renunciation’ is used to refer
to the act of voluntarily giving up one’s citizenship. In this context, it has to be noted that the differentiation between voluntary and involuntary loss is not undisputed. Ben Herzog (2015) claims that this distinction is merely semantic as “the loss of citizenship is usually involuntary in that it is determined by economic, political, and/or social forces outside any individual’s control” (25). I stand by the division of procedures of loss into voluntary and involuntary as I believe that if an individual has the ability to voluntarily acquire a citizenship, then she is also equipped to renounce it freely. The coercion of citizens into relinquishing their citizenship rights is a sad reality but does not disperse the fact that some do renounce their nationality without being asked to.
Citizenship is a disputed concept in its own right as scholars have failed to agree upon a single definition of the term (Brubaker 1994; van Steenbergen 1994; Lupien 2015; Yanasmayan 2015; Dvir/Morris/Yemini 2018). One of its most prevalent contemporary characterizations was coined by English sociologist Thomas H. Marshall defining citizenship as an expanding set of rights an individual was bestowed with by the state (Marshall 1950). Since this post-war analysis, the Marshallian model has been extensively criticized due to its focus on a white, male working-class perspective and its failure to take immigration into account (Joppke 1999; Norman/Kymlicka 2003; Benhabib 2004). In an effort to thus expand the definition of the term, scholars have referred to the membership of a political community implied by citizenship, which is marked by rights but also duties, participation and identity (Delanty 1997; Lupien 2015).
This thesis will operate under the definition brought forth by Norman & Kymlicka constituting citizenship as “membership of a self-governing political community” (Norman/ Kymlicka 2003: 210). According to the authors, citizenship comprises four dimensions it can be interpreted in: citizenship as a legal status, as an identity, as solidarity, or citizenship as a civic virtue (ibid.). The forthcoming analysis will focus on citizenship as a legal status as it will
examine the principles under which said legal status is allocated – and whether these principles imply the possibility of citizenship being stripped away.
2.2 The Historical Interplay of Citizenship Allocation & Revocation
The history of denationalization is inextricably connected to the story of citizenship. In its inception, citizenship was “tailored to the size of cities and city states” best exemplified by Ancient Greece (Habermas 1994: 28). Those were the times when banishment was a regular practice. Polities could expel members temporarily or indefinitely without effectively forcing them on another polity further utilizing the practice as a “means of constructing and reinforcing both state power and abstract, rationalistic norms of citizenship” (Gray 2011: 565; Forsdyke 2005). With the rise of nationalism in the late eighteenth to mid nineteenth century, states became more defined membership units (Gibney 2013b). This meant on the one hand that they became less prone to take in non-members while on the other hand the expulsion of citizens became increasingly difficult (Kingston 2005; Noll 2005). Nationalism reoriented the relationship between state and individual as it made the claim that “each state was the state of a unique people” (Gibney 2013b: 648). This exceptionalism insinuated a unique responsibility by the state to care for its citizens delegitimizing the practice of banishment.
However, this ‘special bond’ between the individual and the state did not only constitute the state’s duty to protect the rights of its citizens. The latter were expected to pledge their allegiance to the state and none other. As Peter Spiro (2010) notes, dual nationals represented instability in a world where instability could result in war (113). In the US during much of the nineteenth and twentieth century, denationalization was regarded as a legitimate punishment for those who transferred their allegiance through naturalization in another state or other acts
representing a transfer such as desertion (Herzog 2015). As allegiance was the key duty of the citizen, acts of treason1constituted the relinquishment of one’s citizenship.
Modern denationalization is mostly associated with authoritarian regimes such as Nazi Germany and the Soviet Union, which left hundreds of thousands of people stateless (Weil 2017). Philosopher Hannah Arendt famously commented, “one is almost tempted to measure the degree of totalitarian infection by the extent to which the concerned governments use their sovereign right of denaturalization” (Arendt 1962: 278). As a result, the relationship between individual and nation-state was further invigorated through a number of international safeguards. The 1961 UN Convention on the Reduction of Statelessness banned denationalization in cases when it would leave a person stateless (Mantu 2018). Since the denationalization of citizens holding only one nationality was thus condemned, citizenship was established as a highly secure status distributed predominantly through birthright either by descent (ius sanguinis) or place of birth (ius soli).
In the second half of the twentieth century, globalization had a significant effect on citizenship law and consequently denationalization practices. It brought a number of “technological and political developments that [facilitated] the mobility of people (…) across national borders” (Aharonson/Ramsay 2010: 183). Increased migration meant an increase of individuals holding dual nationality, an effect amplified by the fact that through a number of bilateral agreements, obligations of loyalty concerning dual nationals (such as military service) were arranged to only concern one country of nationality (Spiro 2017). Allegiance was therefore no longer an essential duty of the citizen as one could hold a nationality without being expected to choose it over the other in times of conflict. Dual citizenship has become even more common due to three factors: policies introducing gender-neutrality into citizenship distributions (allowing children to inherit the nationality of their mothers); the inclusion of ius
1There is no legal agreement as to what precisely constitutes treason. The definition utilized in this context
refers to offenses of attempting to overthrow one’s government or of assisting its enemies in war (Merriam-Webster 2019).
soli principles into ius sanguinis regimes to accommodate second and third generation
immigrants; fewer regulations requiring the renunciation of one’s nationality of origin upon naturalization (Brubaker 1994; Gerdes/Faist/Rieple 2007).
This growing embrace of dual nationality by Western liberal democracies poses a stark contrast to the long-held citizenship principle of mono nationality. This tension has resulted in a change of how citizenship is defined both in the political and the public discourse. The nation-state had grounded its existence on the uniqueness of its nation and the ‘special bond’ between citizen and state. As more and more people hold bonds with multiple nations, states have grappled with the challenge of finding a new denominator for their citizens’ loyalty towards the political community. Recent literature has coined the ‘culturalization’ of citizenship, denoting a trend “in which what it is to be a citizen is less defined in terms of civic, political and social rights, and more in terms of adherence to norms, values and cultural practices” (Tonkens/Duyvendak 2016: 2).
This development has also impacted denationalization policy. As a citizen’s loyalty no longer constitutes the key condition for holding citizenship, acts committed against the state such as treason are no longer sufficient grounds for denationalization. The culturalization of citizenship has further put greater emphasis on integration as a prerequisite for legal membership and hence made a lack of integration a sufficient justification for the deprivation of said membership (Joppke 2010; Mantu 2018). This increased focus on values and the stance that the infringement of such values constitutes one relinquishing one’s citizenship is especially demonstrated in the discourse concerning the denationalization of citizens who engage in terrorist activities. It “inevitably involves discrimination” as persons holding dual or multiple citizenship are at a much higher risk of denationalization than those holding only mono nationality (Gibney 2017: 371; Hofhansel 2018). Some have criticized the differential treatment of dual and mono citizens as devaluing the status of citizenship as it infringes upon the equality of state membership (Bauböck 2015; Macklin 2015). Nonetheless, some political actors such
as the former British Home Secretary David Blunkett have portrayed the practice as an act of defending the value of citizenship “to make holding [it] worth something” (Gibney 2013a: 637; Mantu 2018).
Barring the normative question of whether denationalization is a just practice or not, states increasingly make use of their power to strip citizenship from an individual with the UK leading the way with more than 120 complete denationalization procedures since 20162(Lenard 2018;
Batty/Noor 2019). Its growing prominence both in political practice and public discourse over the past decades makes the revocation of citizenship an essential feature of citizenship theory that has to be taken into account when discussing principles of citizenship allocation.
3. Analysis of Contemporary Citizenship Allocation Principles
A new principle of citizenship distribution has to walk a difficult line between adjusting to the growing mobility of people as such while upholding the responsibility of states to protect their citizens’ rights. As previously discussed, ius soli has seen an increased application in an effort by states to accommodate second and third generation immigrants within the polity. Due to this move towards a system based on who resides or can be expected to reside within a specific state, I selected Joseph H. Carens’ citizenship allocation principle for the subsequent analysis. Carens bases an individual’s “moral claim” to citizenship solely on the amount of time they have lived within a citizenry (Carens 2013: 49). Hence, Carens’ approach represents an extension of the trend towards citizenship distribution systems that supplement ius sanguinis regimes with ius soli principles.
Carens’ work is contrasted with Ayelet Shachar’s seminal critical examination of birthright citizenship. Covering one of the “most hackneyed topics in both the academic and political arenas” (Marr 2011: 1164) – citizenship – Shachar offers a fresh take on a crucial part
of citizenship allocation that is rarely acknowledged, let alone criticized. Both scholars depart from the same abstract starting point: Contemporary global inequalities are (at least partially) upheld through the way citizenship is allocated. Shachar views citizenship, and all rights and obligations that come with it, as “the quintessential inherited entitlement of our time” (Shachar 2009: 11). In a similar vein, Carens writes that citizenship should not be regarded as a “feudal title or property right that could be passed on (…) regardless of where the heirs actually lived their lives” (Carens 2013: 30). They both posit citizenship status not only as a formal entry into a community but rather as an attestation of said membership. Once one has spent a significant amount of time living within a community, it is nearly impossible not to become a member. Both authors support this “social fact of attachment” as it was referred to by the International Court of Justice (ICJ) in its ruling on the prominent Liechtenstein v. Nottebohm case3
(Liechtenstein v. Nottebohm 1955: 23).
Nevertheless, the scholars propose two differing principles for the distribution of citizenship. The two subsequent sections will introduce both principles of citizenship allocation followed by the evaluation of the strength of the either justification for legal membership also by examining their implications concerning denationalization.
3.1 Ius Nexi
In her seminal work on birthright citizenship, Ayelet Shachar coined the concept of ius
nexi. The term is meant to channel the key idea behind Shachar’s method of citizenship
allocation: “connection, union, or linkage” (Shachar 2009: 165).
Shachar’s elaborations are founded on the claim that the dominant principles of citizenship allocation (ius soli and ius sanguinis) lead to issues of over- and under-inclusion in the citizenry:
3In the Nottebohm case, the ICJ had to rule on whether the plaintiff, who held German citizenship, had
resided in Guatemala most of his adult life and had also acquired Lichtensteinian citizenship, was entitled to Lichtensteinian protection against the Guatemalan state (Shachar 2009: 166-7).
A state operating under the norm of ius sanguinis makes it impossible for immigrants to acquire citizenship due to their parentage. However, those that emigrated from the state are able to pass on their citizenship to their children and grandchildren without them ever setting foot in the territory of the state. A strict ius soli regime grants citizenship to anybody born within state borders – regardless if to resident parents or tourists. This mechanism includes anybody born on state territory by accident in the citizenry and excludes all those that arrive at a young age (Shachar 2009; Joppke 2008).
In order to prevent over- and under-inclusion, Rainer Bauböck proposed a “‘citizenship stakeholder’ principle” (Bauböck 2017: 64). It is based on the moral premise that all of those affected by the policies of a state should be a member to it in order to strengthen democratic legitimacy (Dahl 1989: 120; Shachar 2009). It also presupposes that democratic participation requires a stronger connection to a polity “than can be transmitted by mere descent” (Bauböck 2005: 17). According to Shachar, ius nexi functions as the theorization of the stakeholder principle. She argues that citizenship requires a “genuine-connection principle of membership acquisition” (Shachar 2009: 164). Therefore, modern nation states should implement a system that uncouples citizenship from the arbitrary event of one’s birth. Ius nexi follows the key idea that the state one is a citizen of should also be the one that one is closest connected to relating back to the Nottebohm ruling, which stated “that the individual upon whom [nationality] is conferred (…) is in fact more closely connected with the population of the [s]tate conferring nationality than with that of any other [s]tate” (Liechtenstein v. Guatemala 1955: 23).
In Shachar’s view, citizenship allocation principles that focus on the moment of birth simply do not grant membership to individuals who, as a matter of “social fact”, have already become members in all manners but formal (Shachar 2009: 171). Without a genuine connection to the state, an individual is not entitled to its membership.
But who decides whether an individual holds a genuine link to the state she wishes to become a formal member of? Shachar proposes the legal validation of a genuine link, which
“may take many different forms” (Shachar 2009: 178). Her list of possible factors – derived partly from past US immigration rulings – includes “length of residency in the country, family ties, (…) employment history” and an examination of the relationships an individual might have with friends, family and professional acquaintances (Shachar 2009: 177-8). While these factors appear sensible at first, Shachar does not specify how exactly these factors should be scored and whether such an intimate inspection of an applicant’s personal life might pose a privacy issue. These questions will be addressed in the subsequent evaluation of the theory.
Ius nexi is meant to factor in the length of a person’s residence but is mainly built on the
genuine-link principle, which results from a person’s membership in the community and is determined by a number of factors. Hence it is not one’s spatial, but personal center of life that matters most.
3.2 Residency-Based Membership
Joseph Carens’ approach to citizenship acquisition takes a somewhat simpler form. He argues that “every adult who lives in a democratic political community on an ongoing basis should be a citizen” or should at least be granted the opportunity to become one (Carens 2014: 543).
Carens formulates four main principles of citizenship distribution. Firstly, every person born in a state that can be expected to live there for a significant amount of time should gain citizenship at birth. Secondly, children growing up in a state should be able to acquire citizenship after a certain amount of time, particularly if said children spent their formative years (age eight to eighteen) in the state in question. Thirdly, any adult migrant living in a country “for an extended period” should have a legal right to naturalization (Carens 2010: 51). Fourth and lastly, if a person has a “genuine connection” to more than one state, she should be able to hold multiple citizenships (Carens 2014: 540).
Even though he utilizes the concept of a ‘genuine link’ between potential citizen and state, Carens does not define it in the same way as Shachar does. For Carens, belonging to or holding ‘social membership’ in a community has its “most fundamental basis” in living in the community in question (Carens 2013: 290). This focus on residency also becomes apparent in Carens’ first principle of citizenship attribution: birthright citizenship (under limitations). On the one hand, he values birthright citizenship as a pragmatic tool since the modern world requires every human to be a member of a polity (Carens 2013: 21; Lenard 2018: 99). On the other hand, his approach also allows for certain birthright citizenship regulations, because most children born to either citizen parents or on state territory can be expected to spend a significant amount of time within the state. This is a crucial point because, as Carens puts it, “the state where [a person] lives inevitably structures, secures and promotes her relationships with other human beings, including her family, in various ways” (Carens 2013: 23). The author thus takes a rather institutionalist approach, arguing that it is not the relationships alone that matter, but that the spatial and hence structural context of those relationships influences them in decisive ways.
This marks the main point of departure between Shachar and Carens. While Shachar does grant residency its influence in the construction of a genuine linkage between person and state, Carens determines length of residency as the factor responsible for an individual’s social membership. The following section will question both principles in an effort to determine whether they solve the problems they set out to and which implications they might have on denationalization practices. Both authors do not mention denationalization explicitly since their primary concern is the acquisition of citizenship. However, the current political reality forces us to admit that citizenship acquisition is not the ‘happy ever after’ that theorists might hope for. Whether morally justifiable or not, denationalization does occur and thus has to be taken into account. Theories seeking to make progress in the realm of citizenship allocation have to
consider the ways in which these allocation principles might allow for the withdrawal of citizenship status.
3.3 Contrasting the Approaches
The key difference between Shachar and Caren’s justification for citizenship allocation is clearly conveyed through the ideal both scholars strive towards. Shachar calls for the end of birthright citizenship as the predominant and unquestioned form of citizenship distribution in order to fight global inequality between citizenries (Shachar 2009: 190). Carens claims that a “just world” would be one of open borders (Carens 2013: 296). This speaks to the distinctly spatial character of his argument.
But which justification for citizenship allocation proves more robust? Even though Shachar’s proposed genuine-link principle attempts to address a crucial issue of modern citizenship, I argue that its conceptualization puts both citizens and noncitizens under disproportionate state scrutiny and possibly opens the door to wider denationalization practices while also failing to prevent under-inclusion. Caren’s residency principle does nothing to curb the issue of over-inclusion, still arising as the favorable approach, as it does allow those already living within a state but unable to receive a legal status to finally do so without extending the possibility of denationalization.
3.3.1 Carens: Too Simple to Function?
Shachar’s ius nexi determines a range of possible factors establishing a genuine link between an individual and the state. These include residency as well as employment, the “pooling of resources” or “sharing a household for an extended period of time” with a citizen of the state (Shachar 2009: 168), caring for a relative, volunteering within the community and a number of further variables that could point to “an actual real, everyday, and meaningful web of relations and human interaction” (Shachar 2009: 166). In comparison to this array of factors,
Carens’ residency principle appears damningly simplistic. Is residency enough to qualify for citizenship?
Carens’ main assumption states that residing within the borders of a state inevitably leads to one’s attachment to it as the state structures one’s relationships with others (Carens 2013: 23). An individual would therefore need to avoid any type of state structure in order to evade said influence and discredit Carens’ assumption. This individual would have to live self-sufficiently on a remote piece of land under her private ownership, never interacting with society. Hence, the individual in question could never seek medical attention or leave their own property at all as the usage of public streets requires the adherence to traffic laws and could potentially involve interactions with other drivers. A person that has migrated irregularly to another country might be likely to avoid state authorities in an effort to escape deportation but – as exemplified by many of the eleven million undocumented immigrants in the US (Benuto et al. 2018) – they do engage with their community, go to supermarkets to buy their groceries, send their children to school and work to earn an income.
One might still argue that five years of residing within a certain community does not constitute a sufficient condition for a genuine membership of said community. However, these five years of residency have not only created a connection between the individual and her new community. These five years attest that the individual has been living under the law of the state in question and abided by its rules. It is a basic democratic principle that any person living “in a democratic political community on an ongoing basis should be a citizen” (Carens 2014: 543; Bauböck 2017). The inclusion in the community and subsequent moral claim to membership over time is a natural, organic process according to Carens. The ambiguity of the five-year-threshold might be a valid point of discussion but could easily be changed to either six or four years without infringing upon the principle’s key idea: After a significant period of living within a state, one becomes a member of its society and establishes a moral claim to legal membership.
3.3.2 Shachar: Ius Nexi’s Continuous Condition
Shachar’s principle of citizenship allocation does consider the aforementioned democratic legitimacy factor but requires more than continuous presence within state borders. Ius nexi’s intricate conceptualization poses somewhat of a challenge to the functionality of the principle. A ‘nexus’ can constitute a single tie or link, an entire network or even a center or focus point (OED Online 2019). However, Shachar never fully determines which of these definitions of nexus is the one grounding her theory. She refers to the ‘genuine-link principle’ and the requirement of a “‘real and effective link’” between the individual and the state, but also illustrates a “‘center of interests’ test” and describes the growing attachment of an individual to a community as the shift of “one’s center of life gravity” (Shachar 2009: 165, 168, 169). While all of these definitions of nexus play into the same key idea – a ‘social fact of attachment’ manifesting through the establishment of relationships with the community – they do pose radically different conditions. It is one thing to demand proof of one’s ties to a community but demonstrating that one’s center of life lies within it requires an entirely different level of evaluation by the state and willingness on behalf of the applicant. It also does not fit into Shachar’s claim that ius nexi would offer the possibility of holding multiple citizenships (Shachar 2009: 179). If she determines one’s center of life as the condition for formal membership, then holding more than one citizenship is impossible. By definition, an individual can only have one center of life. Acquiring a new citizenship would thus require the individual to renounce her former center of life and consequently her original citizenship.
However, one might favor Shachar’s precondition of a genuine link – or a web thereof – towards the community an individual wants to become a formal member of. After all, a person can be a member of multiple relational networks. The point in question here lies in the constitution of a link or connection. It is natural for relationships to change. Some deepen, some become more loose ties, others disintegrate entirely. Shachar herself recognizes that relationships and the networks humans develop are not static in nature: “ius nexi honors one’s
‘center of life’ and actual (or ‘active’) membership location, while acknowledging that this
locus itself may change over the course of one’s lifetime” (Shachar 2009: 179). This is also
apparent in her description of children born abroad “to parents and families that have long lost their ties with the country of birthright membership” (Shachar 2009: 165). Therefore, Shachar not only accepts that relationships change, but also that they can be lost entirely.
Citizenship that is based on either a genuine link or the center of one’s life is no longer a constant status. It is a legality based on a highly fluid web of circumstances that might change drastically within a short period of time. This becomes especially problematic in a political context that is not just trying to figure out who to give citizenship to, but also how to take it from some. If citizenship were only to be based on the ‘social fact of attachment’, then a ‘social fact of detachment’ would surely arise in consequence. If a naturalization procedure can prove the existence of genuine ties between individual and community, then a denationalization procedure should – logically – be able to prove the dissolution of the ties in question. If a society bases its membership on said ties, would it then not also normatively require for its members to maintain said ties and exclude them if they failed to?
As discussed earlier, the institution of citizenship historically signified an individual’s allegiance with a state and a breach of said allegiance formed sufficient grounds for denationalization (Herzog 2015). Whatever citizenship is constituted to represent, if a citizen violates these principles, states have – and still hold – the ability to exclude them from the polity. In this day and age, citizenship is often associated with a certain set of values prescribed by a state’s constitution or majority culture. As demonstrated by the ongoing discussions concerning the denationalization of citizens committing terrorist acts, the revocation of citizenship is justified by the violation of these core values. Therefore, I argue that a state operating under ius nexi would require its citizens to continually uphold their genuine link to the community. Citizens violating this core principle would be subject to procedures assessing
their genuine link and could be stripped of their citizenship if the linkage could be proven to have disintegrated.
3.3.3 Carens: Revoking Residency?
The exposition of Shachar’s genuine-link principle as a continuous condition of citizenship of course invites the claim that Carens’ principle of residence could also be interpreted as such. If we follow this line of thought, any citizen that does not reside within the borders of her state of legal membership should be removed from the polity. This argument reflects the criticisms voiced by a number of scholars regarding the fact that expats (citizens living abroad) are still allowed to vote (Tanasoka 2015; Joppke 2018). Nevertheless, Carens’ allocation principle evades the conversion into a continuous condition due to two points. Firstly, Carens himself argues that a citizen should retain her full set of rights even after she emigrated from her state of origin, because her time spent living in her home state has had a lasting impact on her that is not undone by moving to – and possibly integrating in – another state.
Secondly, Carens’ principle does not turn into a constant condition as it is easily translated into a concrete threshold. Carens states that he views five years of uninterrupted residency as a sufficient condition of citizenship. This means that Carens’ allocation principle reflects the irrevocable impact of residing within a community on an ongoing basis. Once a person has met the threshold for a claim to social membership, the condition for citizenship has been fulfilled and cannot be taken away. The citizen could not be excluded from the polity after moving abroad, because her experience of living in the community would not diminish as a result of the relocation. She would therefore not be violating the core principle of citizenship as established by Carens.
Shachar might counter that her genuine-link principle was conceptualized to also constitute a threshold. A genuine link would only need to have been established once and that
would be enough to qualify for citizenship, not the continuing existence of the link. She could argue that the genuine link may also signify the experience of life in a community just as Carens’ five-year-residence principle. Would this claim refute the earlier allegation that ius nexi could result in the denationalization of citizens that did not uphold their genuine link? No, because Shachar’s allocation principle cannot be effectively translated into a concrete threshold. The creation of a sufficient condition for citizenship based on a genuine link would require the state to determine a procedure for the scoring of relational links.
This constitutes a crucial problem challenging ius nexi: How does one set about scoring human relationships? By their length? The total time spent together? The average time spent together within a month? The number of text messages exchanged within a month? Human relationships differ greatly, and it would pose a Herculean task to define a scoring-scheme that could evaluate the intimacy of any relationship sufficiently. Joseph Carens criticized such probes into a person’s privacy as “run[ing] afoul of the normative commitment of liberal democratic states to respect individuals” (Carens 2010: 26). Other factors mentioned by Shachar, which an individual could be scored on, are employment, caring for a relative or volunteering within the community. These factors could be scored more easily, for example by the length and extent of the employment or the number of hours spent volunteering. However, these factors are also more susceptible to disadvantaging low-income or unemployed migrants. Those without a job will not be able to score points in the ‘employment’ category, while those working many hours in one or multiple low-income jobs will not have the capacity to also volunteer in their community.
The issues inherent in the scoring system necessary to determine a set threshold of citizenship allocation according to ius nexi thus do not allow for the genuine link to imply a onetime qualification. Consequently, an ius nexi system would require its citizens to maintain their genuine links with the community and possibly exclude those that would fail to do so.
3.3.4 Shachar: Solving Over- and Under-Inclusion
Nonetheless, Shachar could argue that the prevention of over- and under-inclusion in the citizenry might merit the possibility of citizenship revocation. This claim is debatable however, because ius nexi might not accomplish this goal – particularly the prevention of under-inclusion. The issue here lies – once again – with the scoring system necessary to formally confirm a genuine link. Most of the factors named earlier as part of a possible scoring system, especially those concerning interpersonal relationships, would require a high level of discretion on their scoring process. Government authorities would have to make a decision whether or not a genuine link was established based on highly individual information. This would result in a less predictable procedure of citizenship application than Carens’ residency principle.
Why is the predictability of the process an important aspect? Taking the case of the US,
ius nexi would be expected to offer a path to citizenship for many of the eleven million
undocumented migrants currently living on US territory, who have spent a significant amount of time building their lives there. What is essential to remember here is that applying for citizenship is not just a big step for undocumented immigrants, because it might award them citizenship. It is also associated with great risk. If the application is denied, the individual was not only unsuccessful, she is also likely to be deported. Young undocumented migrants in the US already have the opportunity to apply for a temporary legal residence status through the Deferred Action for Childhood Arrivals (DACA) program. However, many are afraid to do so as the application requires them to “[out] themselves and their family’s undocumented status” (Benuto et al. 2018: 261) thus risking the deportation of their families as government authorities are aware that undocumented children are most often not the only undocumented members of their family. The application process under ius nexi would be a hazardous procedure for undocumented immigrants as they would have to ‘out’ themselves as undocumented, thus risking deportation, while also disclosing their entire nexus of relationships, possibly putting further family members at risk.
One can consequently assume that the unpredictable nature of the naturalization process under ius nexi would deter those currently systematically excluded from the polity from applying to become a citizen. Shachar’s allocation principle hence does not solve the issue it was created to solve.
3.3.5 Carens: Diluting Citizenship
The application of Carens’ allocation principle would result in a much more predictable application process as it would simply require the applicant to show evidence of a continuous five-year residence. While the utilization of residency as the decisive factor might aid the combatting of under-inclusion, Carens does allow for vast possible over-inclusion as he does not indicate a maximum number of citizenships one person may possess.
This problem is best illustrated through an example: Notional Person One is born in state A and thus holds A’s citizenship. At the age of five, Person One moves to state B and resides there until the age of 18 thus acquiring B’s citizenship. Person One subsequently moves to state C and lives there for six years, earning C’s citizenship as well. At age 24, Person One moves to state D and stays within its borders for the next six years, being granted D’s citizenship, too. Person One was able to acquire four different nationalities at 30 years of age and without having to renounce any of them.
Why would such an influx in individuals with multiple nationalities pose a problem? Besides the democratic legitimacy argument concerning the array of voting rights held by one individual, it might also undermine one of the core functions of citizenship. Both Carens and Shachar as well as other scholars have acknowledged that citizenship as a legal status is still necessary since the world continues to be divided into nation-states and each individual has to be under the jurisdiction of one of these states (Bosniak 2008; Lenard 2018: 99). The international right to citizenship established through the Universal Declaration of Human Rights offers a legal backing for the assignment of individuals to states. Hence, the international
system has to ensure that each person holds a citizenship somewhere (Edwards 2016). These regulations were put in place to prevent statelessness and demonstrate that citizenship functions as a label of each individual, assigning them to a state that is responsible for the protection of their rights. But what happens in a world where every individual has more than one label?
In a scenario in which multi nationality is the reality for a majority of people in the world, states might be tempted to neglect the protection of the rights of their citizens as they can always assume that another state is also responsible for the individual in question. This development would thus result in the dilution of citizenship and risk the protection of citizens’ rights. Hence, Carens would be pressed to add a provision designating a maximum number of citizenships an individual should be allowed to hold.
The analysis of both Ayelet Shachar’s ius nexi and Joseph Carens’ residency-based allocation principle demonstrates that while both principles aim to solve similar problems, their respective applications would have vastly different outcomes. Ius nexi’s challenge of birthright citizenship is highly necessary, but the principle does not sufficiently solve the issue of under-inclusion of immigrants in the polity. It would also result in a possible increase in denationalization procedures as the genuine-link principle proposed by Shachar can only function as a continuous condition for citizenship. This is due to the qualitative characteristic of ius nexi. In contrast to the residency-based principle, which rests on a quantitative definition,
ius nexi hopes to determine the quality of an individual’s link to the state. A task that proves
effectively impossible.
Carens’ principle of citizenship allocation emerges as more robust as it effectively combats under-inclusion and is less likely to produce grounds for citizenship revocation. However, it only poses a viable solution once it has addressed its issues of over-inclusion – through a limit of nationalities possible to be held by one individual at a time, for example.
4. Case Discussion and Conclusion
Carens’ residency-based approach to citizenship allocation results in a citizenship regime that makes denationalization highly unlikely. A look at the current circumstances in the US allows for the evaluation of a system that has made the deprivation of citizenship practically impossible (Spiro 2014). This section serves as a review of the assumption that an allocation system limiting denationalization is to be preferred in order to secure the stability of citizenship as a legal status.
The US has offered a curious case in the context of denationalization, because its strong position on the withdrawal of citizenship might seem unintuitive. Due to a number of case rulings made by the US Supreme Court, it is impossible for a US citizen to lose her legal status against her will. She can, however, be sentenced to death in 29 of the union’s 50 states. A set of circumstances that prompted Supreme Court Justice Felix Frankfurter to comment that the US constitutional dialectic was “empty of reason” as the court had “urged that loss of citizenship is a fate worse than death” (Lavi 2011: 803). In a time during which various European states have moved to legalize citizenship deprivation, no such bill has made it through either chamber of the US Congress. Most recently, Republican Senator Ted Cruz sponsored the ‘Expatriate Terrorist Act’, which was introduced in February 2017 but failed to gain any significant support (US Congress 2017). Cruz is one of a number of politicians that have pushed for the denationalization of terrorist citizens over the years. But why has this legislative proposal fallen on deaf ears so far?
According to Peter Spiro, citizenship deprivation does not add any significant instrumental value for the state. The US government does not substantively gain anything from denationalizing an individual. Spiro pointedly states that “in most cases (…) the government will have a shaky case for expatriation but an adequate one for targeted killing” as citizenship protections have been diluted while noncitizen protections have been elevated (Spiro 2014:
2177). From an instrumentalist perspective, the US government is not set to gain anything from denationalizing a (terrorist) citizen besides a possible short-term symbolic value. Spiro’s instrumentalist analysis of the limited use of denationalization practices in the US points to the notion that states search for ways in which they can remove certain citizens, who infringe upon key features of citizenship, from the polity – either through formal citizenship withdrawal or the termination of the individual’s existence as a whole. This point will be further elaborated upon after a brief farther clarification of the US case.
The reason as to why the deprivation of citizenship is such a difficult case to make within the US legal system are two key US Supreme Court rulings on the matter of denationalization. They illustrate the legal status of citizenship as inalienable, because “in our country the people are the sovereign and the Government cannot sever its relationship to the people by taking away their citizenship” (Afroyim v. Rusk 1966: 257). Naturalized citizens are explicably made equal to those born into citizen status: “[The naturalized citizen] becomes a member of the society possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native” (Afroyim v. Rusk 1966: 261). This definite promise to the equality of citizenship forbids any hierarchy between citizens – as is evident in legislation targeting solely dual or multiple nationality holders. The death penalty however is defended through precedent. The court rulings examined determine capital punishment not to constitute cruelty, but rather a constitutionally “widely accepted” form of punishment (Trop v. Dulles 1957: 99).
However, how does the Supreme Court justify the categorization of denationalization as cruel and unusual punishment? This reasoning is made up of two parts: Firstly, the Court’s goal to prevent statelessness and secondly, the protection of the Fourteenth Amendment, which addresses citizenship rights. Chief Justice Warren described denationalization as a “punishment more primitive than torture” (Trop v. Dulles 1957: 101), because the individual in question cannot foresee whether or when she will be forced to leave the country, she used to hold nationality of. Interestingly, Chief Justice Warren viewed the prohibition of denationalization
as a prerequisite of the protection of the Fourteenth Amendment, which had been passed explicitly in an effort to ensure that those who has gained citizenship through the Civil Rights Act of 1866 – predominantly African Americans – could not be stripped of their status by a future administration (Afroyim v. Rusk 1966: 263).
This stated perspective is evidence of the notion that states have the tendency to attempt to expel certain (groups of) people form their citizenry. The same notion that was clearly described by Spiro (2014) in his elaboration as to why formal denationalization procedures are still not utilized in the US: the state had found other effective ways to exclude individuals from the political community. The treatment of Representative Ilhan Omar within the political and public discourse further illustrates that while “the legal ruling on this issue is absolute, the sociological perception that national allegiance ought not to be divided still lingers” (Herzog 2015: 10). As a naturalized citizen Omar might formally hold the same rights as her peers, but she is not regarded as such and prompted to leave the community. The value of citizenship gained through naturalization is hence degraded, a violation of citizenship’s key feature of equal membership.
These circumstances demonstrate that a complete denationalization does not have to take place in order for a person’s legal status to be reduced. This assessment is not new since certain citizenship rights are routinely revoked as citizens are imprisoned, disenfranchised or even sentenced to death. In the context of denationalization, however, the fact that “millions of Americans lose some of their citizenship rights every day” (Herzog 2015: 3) illustrates that the revocation of citizenship is only the end-point on a scale of rights revocation. Even in a country like the United States that formally defines citizenship allocation and revocation as a matter of individual choice and as part of a liberal system meant to protect the individual from the state, citizenship rights are not protected to the same extent as the title ‘citizen’. US citizens might be protected from being detained at Guantanamo Bay (Spiro 2014), but they can still be imprisoned for life, permanently disenfranchised or sentenced to death. Citizenship is not a matter of black
and white, of having or not-having it. There is a grey space between the two extremes, which is difficult yet necessary to address.
This thesis examined two principles of citizenship allocation meant to address the mismatch between territorial borders and boundaries of membership created through people’s increased cross-border mobility (Bauböck 2008). Both principles did not address denationalization explicitly, but their analysis shows that Shachar’s ius nexi prerequisites a continuous condition of genuine linkage between individual and state, which could be utilized as grounds for the revocation of citizenship. Carens’ residency-based approach does not provide such a justification for denationalization and could offer a solution to the issue of under-inclusion. However, the short examination of the practical context of citizenship revocation in the US illustrates that a formal ban of denationalization does not prevent the hollowing out of the status of citizenship as extensive rights revocations are still possible and routine.
If citizenship distribution is to be updated sufficiently in order to combat the aforementioned mismatch of territorial and membership boundaries, then citizenship deprivation has to be taken into account. Nevertheless, cases such as that of Representative Omar demonstrate that under-inclusion is not eliminated by the mere allocation of citizenship, but true inclusion within the citizenry requires both the formal and social affirmation that the membership status of those naturalized does not lag behind the status of those born into it.
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